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Ian Factor stood Friday near a spot in Portland, Maine, where he says police two years ago stopped him from finishing the painting behind him. (Globe Photo)

Creative disobedience

Artists stage 'paint-in' to protest permit law

By Sarah Schweitzer, Globe Staff | July 12, 2004

PORTLAND, Maine -- Like a number of mid-size cities seeking a niche beyond faded industrial hub, Portland has cast itself as a haven for the creatively inclined, carving out a downtown arts district and priding itself on galleries and respected museums that draw tourists and dollars.

But on the city's sidewalks and in its parks, artists say they are faced with a confounding hurdle: a law that requires them to obtain a $75 permit to set up an easel.

''The city says it is worried about congestion, but it's a red herring," said Doug Emerson, a Portland photographer. ''It's an issue of control. We are trying to let artists know that art transcends the written word."

To that end, Emerson and about a dozen other artists on Saturday held a demonstration they playfully referred to as a ''paint-in." They took up their watercolors and paintbrushes, propped easels along the city sidewalks and byways, and painted -- permitless.

The law says Portland authorities could have fined the artists betweem $50 and $500. They did not, and the event went off without a disturbance.

The issue has drawn the attention of the Maine Civil Liberties Union, which plans to hold a public meeting Wednesday with city officials and artists to discuss the law governing easel permits, along with another requiring a permit and proof of insurance for artists who sell their work on city property.

''Artists shouldn't be treated any different than anyone else. If they are blocking the sidewalk, they can be asked to move," said Zachary Heiden, a lawyer for the civil liberties group. ''But there is no need to make a special case for artists that they need to get a permit or insurance."

He added, ''The streets and the sidewalks belong to the people and it's not for the City Council to divvy them up and say where they can be or can't be."

The group has not sued the city but Heiden said litigation is possible if an agreement cannot be reached. City officials defended the law.

''We have a reasonable basis for wanting to know who these people are and wanting to know that they can provide some indemnification," said Gary Wood, Portland's municipal attorney. ''If their position is that they don't want any regulations, no matter how reasonable they are, we probably won't reach agreement."

The issue of how to accommodate artists in urban settings arises with increasing frequency as cities embrace artists as agents of gentrification. Across the country and region -- in Boston, Providence, Lowell, and Portland -- artists have been welcomed into struggling industrial areas where former mills make ideal loft and studio space and low rents make living affordable.

Yet the marriages have not been without tensions. Artists say that municipal leaders often fail to provide subsidies to help them stay put once rents begin to rise in the areas they say they helped to rejuvenate and should be able to continue enjoying.

Equally contentious are restrictions on the sale and creation of art in public. In New York, the issue landed in the courts. There, in what artists hailed as a victory, the Second Circuit Court of Appeals ruled in 1996 that the sale of art is a protected activity under the First Amendment and authorities are limited in their ability to restrict it.

The restrictions remain in some cities, although authorities do not always know the specifics of the laws and their enforcement.

Boston, for example, charges artists an annual fee of $15 per square foot of public space used for the sale of art. It also requires an artist to obtain a permit for setting up an easel on streets or sidewalks, but how much that permit costs is an open question.

''We have never had a case of somebody applying for a permit for an easel." said Seth Gitell, spokesman for Mayor Thomas M. Menino. He declined to speculate as to the cost of such a permit.

In Portland last week, the artists' demonstration had city officials scrambling to explain their laws. City officials said there is an annual $225 fee for a license to sell art on city property and an annual $75 fee for a permit to set up an easel. But how the requirement is enforced is less clear. City officials note that no artists have been fined for painting without a permit.

''There is an ordinance on the books that says that," said Peter DeWitt, a city spokesman. ''But realistically, would we require them to get a permit or move their easel if they are not blocking the sidewalk? No."

Artists say the city's open-ended interpretation of the law could lead to selective enforcement.

Ian Factor, 34, a painter and native of Burlington, Mass., who now makes his home in Portland, said two years ago he was painting three boys in a city park when a police officer in a cruiser pulled alongside him and asked for a permit. He did not have one and agreed to leave the area. The officer did not issue a citation.

''I was like, 'Am I on Candid Camera?' " said Factor, who attended Saturday's demonstration. ''It's a sad day when artists get harassed for painting on the street."

City officials say the incident Factor cites was an isolated one. ''We look at ourselves as an artist-friendly community, " said DeWitt. ''But there are certain rules and procedures that have to be followed and we're trying to balance the First Amendment right to gather and the public's right to access public spaces without obstacle."